[CCWG-ACCT] Minority statements inclusion in report

[Malcolm Hutty]

On 2015-12-01 00:04, David Post wrote:
> At 06:03 PM 11/30/2015, Silver, Bradley wrote:
> 
>> David,
>> 
>> I am having some trouble understanding your examples below. Is
>> your concern with the grandfathering of the RAA that it would give
>> ICANN total freedom in deciding how to respond to enforcing
>> provisions like 3.18 – even such enforcement was clearly not
>> consistent with its stated mission?
> 
>  Yes, that is a very, very serious concern.

This concern I think we can deal with.

My understanding was that the agreed text text was intended to prevent
ICANN having such unfettered freedom. If your concern, David, is that it
might be unsuccessful in that attempt, then let's just agree that the 
attorneys
must ensure that it avoids any possibility of that outcome.

Since we are not discussing the final bylaws, but only text that is 
intended
to brief the lawyers, and that the text written by the lawyers will come
back to the CCWG for final review, this remains within our power.


> 
>> Or do you believe that to the extent ANY enforcement by ICANN of
>> provisions like 3.18 that touch on illegal activity that implicates
>> “content†would take such a provision outside the
>> mission?  If it’s the latter, then it appears you are
>> attempting to achieve a retrospective amendment of the RA and RAA
>> – by redeffining “illegal activity†or “activity
>> contrary to applicable law†to specifically exclude any activity
>> which relates to the content associated with the Registered Name. Â
>> Â
> 
>  Yes, I believe this as well. I thought we had widespread agreement on
> that. To the extent enforcement by ICANN of provisions like 3.18
> _touch on illegal activity that implicates content_ is outside the
> mission. The Proposal clearly says: "ICANN’s Mission does not
> include the regulation of services that use the Domain Name System or
> the regulation of the content these services carry or provide." If
> enforcement of the the provision (again, like the defamation/fraud
> examples) touches on "illegal activity that implicates or relates to
> _content_, I do not believe that ICANN can impose obligations
> (directly or indirectly) on domain name holders with respect to that
> content. The RAA ad the RA appear to allow them to do that - which is
> why we need to clarify that they're not "grandfathered" in.

I am afraid I must disagree with you here, David.

Merely "touching upon" content is not, in my view, sufficient to place
something outside the scope of ICANN's Mission and it wasn't my intent,
in supporting this text, to make it so.

I certainly wish to prevent ICANN using its authority over domain names
as leverage to enable it to engage in activity whose *purpose* is the
regulation of content, even if the *means* is limited to regulating 
domain
names. But if the true purpose is an entirely proper regulation of 
domain
names, then merely "touching upon" content is not sufficient, in my 
view,
to prevent ICANN from that goal.

Perhaps curiously, I can't think of any better example example to 
illustrate
this distinction than the discussion we recently had about the UDRP:
in the UDRP, the purpose is to determine whether someone has registered 
a
domain to which they have no right (or rather, in which someone else's 
rights
in that domain preempt and preclude them from registering it). So long 
as
the focus is on answering that question, content on services addressed 
using
that domain is perfectly admissible and relevant evidence. Selling 
widgets
marked with a counterfeit "Banana" trademark on www.banana.com is 
perfectly
good evidence that your registration of banana.com was intended as a 
misuse
of Banana Corp's trademark and not as a legitimate, lawful use of the 
string
banana to market fruit. On the other hand, content is only evidence in 
that
question: illegitimate content cannot of itself give rise to a right to 
a
third party to supercede the registrant's rights in the domain under the
UDRP, even if it does give rise to remedies against the registrant under 
local law.

I really do think the respective sides to this debate need to accept the
long-established boundaries to ICANN's role, even if neither are 
terribly
happy about them. ICANN WILL regulate domain names per se, and its 
enforcement
mechanisms will make use of relevant evidence to that effect; so sorry, 
dear
friends in the civil society community, but this is settled. On the 
other
hand, ICANN CANNOT be authorised to regulate the entire Internet, using 
the threat of domain
suspension as a cure-all for every supposed evil that people do online: 
we are
simply not willing to give ICANN such power; that must be reserved for 
governments
acting within their own jurisdictions (and not collectively, through 
GAC).

This is the balance. This is the compromise. On this compromise rests 
not
only support for transition, but support for ICANN itself, and for the
multi-stakeholder model more generally. If ICANN is not able to regulate
the sphere placed within its responsibility, support for ICANN as an 
effective
means for discharging that responsibility will evaporate, first within 
the
IPR lobby, then governments, and gradually more generally. But equally, 
if
ICANN overreaches, and uses its power to implement more general 
regulation of
what occurs online, then support will evaporate just as fast: first with 
civil
society, then with other Internet intermediaries like ISPs, and 
remarkably rapidly with
governments too (when that power is used for a purpose contrary to their 
own local policy,
as must be inevitable), and then at last with the whole community.

Our job here is to preserve that balance, not to upset it; to ensure 
that the
enforceable rules we write to uphold that balance are durable, and will 
ensure
that the line is respected, not just today, but in the face of 
challenges to come.

I believe our Third Draft Report successfully preserves that balance 
and, crucially,
provides the means to ensure that the same balance survives in the 
post-transition
environment. Our lawyers must now implement these measures, and we must 
then
check that they have done so.

Kind Regards,

Malcolm.

-- 
             Malcolm Hutty | tel: +44 20 7645 3523
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